from the this-guy's-a-good-guy-whoever-the-hell-he-is dept

Cops don't believe much of what criminals say -- even those who are still just "suspects" or "persons of interest." They'll say anything they can to stay out of jail. Perps are liars. Except when they're not.

When these perps become confidential informants, they're suddenly considered George Washington of the underworld -- paragons of truth and reliability. Affidavits and courtroom statements play up their honesty and integrity in a way only cops can: "CI-22 made several controlled purchases and said he saw weapons in the house." "CI-4130 has worked closely with Drug Interdiction over the past three years, leading to multiple arrests." And so on.

Confidential informants are given numbers rather than names to ensure those they've helped arrest don't come after them when they're released. A CI's "pedigree" is provided to magistrates in warrant applications and presented to trial judges as evidence of the informant's trustworthiness. All of these are sworn statements -- statements that rely on the confidential informant being not only who the officer says he/she is, but that this CI has proven trustworthy in the past. But all the courts -- and the defense -- see is a number.

In the [Richard] Graf affidavit, [Somerset Sheriff's Deputy Carl] Gottardi attested he had probable cause to believe Graf was hiding marijuana and other drug accoutrements in his home, based on information Gottardi received from a confidential informant called "11-25." 11-25 "ha[d] been a very reliable informant . . . for the past several years," and had helped "obtain[] numerous drug search warrants, . . . with numerous persons being charged and convicted of various . . . drug offenses," Gottardi swore. 11-25 had "also provided other law enforcement officials with reliable drug related information in the past." Specific to this case, Gottardi also wrote in the affidavit that 11-25 relayed his personal knowledge that "for several years [] Graf has continually sold large amounts of marijuana," describing the location of the "camp type residence" where Graf sold his "high grade, commercial type" stuff.

Relying on Gottardi's affidavit, a state Justice of the Peace signed off on the warrant, and during the search of Graf's home, police found marijuana plants and an unregistered short-barreled shotgun. Not surprisingly, Graf was indicted on federal firearms possession and drug charges.

When Graf challenged these CI statements, he uncovered something that indicated the numbering system was worthless, and by extension, so was every sworn statement averring to the reliability of CI 11-25. Because there was no single "CI 11-25."

[H]is new lawyer decided to get to the bottom of things himself by digging up all the warrant applications filed by the Somerset County Sheriff's Department from April 2009 through April 2012 and searching for all references to "11-25." Turns out, there were none, that is, no warrant applications filed prior to April 2011 (which was when Gottardi got the warrant to search Graf's home) naming "11-25" as an informant. "11-25" did appear, however, in two of the warrant applications filed after Graf's, but in each of the three affidavits where "11- 25" was mentioned, the informant's background and history as a tipster were described a little differently.

It gets worse. The government's response completely undermined any previous claims of reliability -- not just for CI 11-25 -- but for any CI it had used to obtain warrants in the past.

The government fired off an explanation, though, and in support of its opposition to the motion, submitted a supplemental affidavit from Gottardi describing his "practice to periodically change the identifying numbers assigned to confidential informants." Gottardi also claimed that "the person designated CI 11-25 in the Graf search warrant has been assigned four identifying numbers during the course of" his work with Gottardi. In addition, "[o]ccasionally, identifying numbers will be re-used for different persons," Gottardi swore.

Graf shot back with the obvious: if the numbers have no underlying structure and are applied to any number of confidential informants, there's no way to verify the veracity of the officers' assertions on warrant requests. Just because one CI 11-25 was useful and honest doesn't mean the CI 11-25 in Graf's case was. CI 11-25 is no one. CI 11-25 is everyone. Sworn statements linking back to a group of informants all periodically using the same identifying number are what laypeople call "lies." It may not have seemed like a lie when the warrant application was filled out, but Graf's research shows that the CI 11-25 who helped generate probable cause either wasn't the person sporting the number when the warrant was obtained, or wasn't as reliable as the swearing officer portrayed him or her.

Gottardi's unconventional practice, Graf urged, "is meant to enhance the credibility of the [informant] whose number repeatedly appeared before the same [reviewing official], even though, according to Gottardi, they are different people."

The lower court was similarly nonplussed.

The court noted that "assigning the same numerical identifier to three different confidential informants within a relatively brief timespan" was a "surprising revelation about what seems . . . a highly irregular, ill-advised, and potentially misleading procedure."

Unfortunately, the judge chose to turn examination of this system and the randomly-numbered CI over to the ATF. The ATF looked it over and declared everything to be perfectly normal and CI 11-25 (who wasn't CI 11-25 at the time the warrants were obtained) just as honest and trustworthy as Gottardi had portrayed him in warrant applications. Graf's attempt to suppress the evidence was shut down.

The appeals court similarly found that the discrepancies between described informants -- combined with the "irregular" numbering system -- wasn't enough to call for the suppression of evidence. The leeway given to law enforcement by courts again makes an appearance, as even a numbering "system" that completely undercuts the alleged "pedigrees" of Gottardi's confidential informants isn't enough to show that he deliberately misled the magistrate when seeking warrants.

As we have acknowledged in the past, making a substantial preliminary showing is no easy feat, particularly when law enforcement relies on tips from unnamed confidential informants. See United States v. Higgins, 995 F.2d 1, 3 (1st Cir. 1993) ("When the government obtains a search warrant based on information provided by a confidential informant, defendants often lack the information required to meet the exacting standards of Franks."). Graf, like many other defendants in the same boat, has simply failed to meet his burden of making a substantial preliminary showing -- particularly under the deferential clear error standard of review we afford to a court's denial of a Franks hearing.

Second-hand statements that can't even be attributed to a fixed number are still trustworthy enough to secure search warrants, apparently. And the courts will back up this irresponsible (to say the least…) behavior because just writing down whatever identification number comes to mind in the affidavit isn't considered too misleading. This numbering system could be deployed to cover up all sorts of unconstitutional activity -- like warrantless searches, Stingray use, intercepted communications, etc. In each case, the fruits of these searches could be attributed to statements made by an unverifiable confidential informant. Even better, the informant never need exist. Cops could approach magistrates with supporting statements from CI-whatever because there's absolutely no way to establish the CI's existence, much less his or her "pedigree."

Yes, a coherent and consistent numbering system would slightly increase the chances of the CI being identified, but it also provides a modicum of proof that this person exists, rather than just being a string of numbers entirely unrelated to any singular person.

from the disgusting dept

We recently wrote about a new lawsuit from some Muslim men, suing the US government after they were all placed on the no-fly list for refusing to become informants. Some of the stories were ridiculous, displaying just how aggressive and coercive the FBI has been in trying to force totally innocent people into becoming informants, even when they lack any actual connection to any terrorists or terrorist organizations. But those disgusting stories pale in comparison to a story reported by Nick Baumann at Mother Jones, in which it becomes quite clear that the US government wrecked the lives of multiple family members (mostly US citizens) after one American muslim man refused to become an informant.

You should read the full story of how it all came about, but through a series of events, the FBI came into contact with Naji Mansour, after his (perhaps naive) abundant display of hospitality resulted in two men associated with terror staying in his mother's house in Nairobi. His mother, an American woman from Rhode Island, worked for the US government (as a part of USAID). Eventually, the FBI appears to have realized that Naji had no real connection to the two men, but then they focused on doing everything possible to force him to become an informant. And when he refused, they basically set about to wreck his life, and then his family's lives. After refusing to become an informant, the family suddenly found it difficult to travel:

...the Mansour family headed to the Nairobi airport to fly to Uganda for a visit with Naji's ex-wife and their children. When Naji handed his passport to a security officer, she glanced at her computer screen, stared at him, and asked, "What did you do?" Kenyan security officers detained the family for several hours, releasing them just before their flight took off.

When the family returned five days later, Kenyan airport police questioned Naji again. "The deputy immigration officer said, 'We have nothing wrong with you, but we have a directive not to let you in,'" Naji recalled. Soon, Fogarty and Jones showed up at the airport. The FBI agent reiterated the US government's desire that Naji become an informant. Naji once again declined.

Another time, his mother stopped by the US Embassy in Kenya to add more pages to her passport -- only to have her passport seized. She was told it would only be returned if she met with the FBI agent who had been pushing to turn Naji into an informant. He asked her where Naji had moved to, because they had apparently lost track of him. The very next day, Naji, who had moved to Sudan, and his wife found themselves detained by Sudanese law enforcement:

The next morning, June 30, Naji and Nasreen—who had come to visit her husband in Juba while Sandra was in Nairobi looking after their children—were about to go out for breakfast when they noticed a man peering through the window. Naji opened the door to find two men in suits, sweating in the heat, with guns on their hips. "One of them looked like African James Bond," Naji told me. "And I say, 'Yes, hello?' And they're like, 'Naji Mansour?' and I'm like, 'Yes.' And they just came in." The agents of the South Sudan Security Bureau asked Naji to bring Nasreen out, and then they took the couple's phones and laptops and hustled them into separate unmarked cars.

His wife was detained for over a week -- never charged with anything and then finally released. Naji was held for over a month. In the middle of his detention, a US State Department official suddenly showed up and told him he should meet with the same FBI agent, Mike Jones, who had been trying to recruit him as an informant. When Naji agreed, Jones immediately walked in with another FBI agent. They demanded some "useful info" to help him get released. He tried to come up with any information he could think of, but the agents told him it was not enough, and then said "All right, Naji, good luck... I hope everything works out for you, buddy" and left.

After a month he was released. No explanation, no charges. A few months later, Jones asked to meet again, and Naji said he wanted to talk by phone first, leading to some calls that Naji recorded, in which Jones appears to directly threaten Naji's family while denying having anything to do with his detention.

There's a lot in there (you can read the transcript at the link above), but it becomes clear that they're dragging his mother into this towards the end of the conversations:

Mike Jones [FBI]: As I said, Naji, you know, there's scrutiny on you, and that's not going to go away. There's scrutiny on your mom, she's a contractor with the embassy, that's not going to go away unless we sit down and get down to business. You don't want to come into the embassy, for good– you say for good reason, but meanwhile your mom is employed at the US consulate. So for you to say as an American, "I don't want to go into the embassy to meet with you, and there's a good reason for that." It's just, to us, it should have been done there. We did you a favor by agreeing to do it outside of the embassy, here, in this city. So, you know, Naji, there's really just not more I can say right now.

Naji Mansour: I'm even trying to decipher what you're trying to say right now.

MJ: What I'm trying to say is, you don't want to come into the embassy to do it. Fine. You know, I- we said we'd do it outside of the embassy. This isn't a, meeting hasn't been a priority to you. In fact, you haven't wanted to sit with us, since we've talked, since I've been back in country. Okay. You say you want to get things resolved. I say there's scrutiny on you. There's scrutiny on your mom. She's employed by the consulate, and yet you don't want, or she's employed at the consulate, through a contractor, and you're saying you don't want to come to the embassy, and there's a good reason for that. So I said meet us.

NM: Exactly. My position hasn’t changed. My position hasn't changed. The scrutiny on my mother has nothing to do with anything, unless you you're making a threat. And currently I told you the situation here, [Mike], that in this country I'm kind of like, have you heard of the expression that beggars are not choosers? I'm on contract. I'm on contract, so I'm not giving you any illegitimate excuse. While you're here, I've bent over backwards. And I really don't like your tone. I don't like your tone, [Mike]. I don't like your tone.

MJ: Naji–

NM: You have scrutiny on me for what? What do you have on me? You have nothing on me. I've done nothing. You cannot tell me…

MJ: Then let's sit down and talk about it.

Later in the call, Jones hands the phone over to another FBI agent (who also showed up in the Sudanese prison earlier), Peter Stone (a pseudonym), and Stone is much more direct about the threat:

PS: A series of events is going to be put into motion. And once you put it into motion, and honestly I, I'm out of it. I honestly do not care. I'm going home, you know I got a vacation to plan, I got this [inaudible] other kinda stuff, my life goes on. Yours might change. And it's not going, it might not be necessarily to your liking. But, this is what's going on, but the whole dodging, you're telling, oh, no, this time, that time, all that kind of stuff, frankly I don't believe it. And again, I really don't care. I'm getting ready to pack my bags and go. But when I go, when [Mike] goes, you know, that door closed on ya. A new chapter will open up for ya, and it's going to be a new chapter of your life, but you’re going to remember that this was the day where I could walked through that door, and ya didn't. But that's all I'm going to say, and I'm going to give you back to [Mike], and…

NM: No wait, hold up [Peter], you can't just…

PS: ...and you guys can say nah nah nah nah…

[crosstalk]

NM: That's a blatant threat, and you're going to put in your report that I, how are you? [crosstalk] That I don’t have an excuse to come, when I'm trying to frickin accommodate.

PS: Dude, dude, dude, no let me tell ya, I was not born yesterday. I haven't been doing this job since yesterday, okay? I know when somebody is yanking my chain. Okay? And I'm seeing...

NM: This ain't the states! This ain't the states!

PS: ... a major chain yank. Okay, this is not the first time, believe me. I've dealt with guys who've done that, and all that kind of stuff, and I've just learned, you know I've got a callus built up. I walk away. And then, whatever happens then, honestly, all I know is I can sleep at night knowing that every opportunity was given, you know, the guy decided not. I've helped people out, on the opposite side, people have been helped out tremendously, and that's something that I'm very proud of. People that were in deep shit, who are no longer in shit, and are living a good live, because I was there for them, and they took that door, they took the opportunity and walked through that door, man. And seriously, honestly, it's the same thing that's available to you. But again, you will remember this day, and you're gonna say, "Shit, I shoulda talked to these guys. And I shouldn't have been doing all excuses." If you didn't have any business going on today, or any kind of a things like that, you're gonna find how minuscule and worthless it was compared to this fork in the road, that you're about to take.

NM: What are you talking about? No, why don’t you come out and say it? Why'n't you come out and say what fork in the road are you talking about?

PS: Dude, I honestly don't care. I'm getting out of here. I don't care. Okay? And, you know, when I tell somebody, hey, you know what, if you cross the street without looking you're gonna get run over, that's not a threat. You know, that's advice. [crosstalk] You're about to cross the street without looking both ways...

NM: No.

PS: And I'm telling you, you know what You might get hit by a car—that is not a threat. That is a solid piece of advice. But you don't want to take it. But seriously I'm done, here's [Mike].

It's not too surprising (though no less disgusting) to see what happened next:

Four days later, on November 17, a State Department security officer visited the offices of Management Systems International in Juba. Sandra was fired the same day—less than a week after the company had renewed her contract for another year. She was told her position had been eliminated, but MSI posted the same job a month later. Stefanie Frease, one of Sandra's supervisors, told me the dismissal came at the behest of the US government.

"We all thought she was blackballed," said Inez Andrews, a former foreign-service officer working in the US compound in Juba at the time. "It's awful she hasn't been able to clear this up, that she's being held hostage to a system that was trying to extract information."

Later, his mother was blocked from returning to her own home in Nairobi, and told by an immigration official that it was because of the US government: "If the Americans don't want you here, you ain't coming in." And, then, of course, the US went after other members of Naji's family, including his siblings who are in the US military.

Other members of Naji's family have been targeted, too. In 2011, Naji's sister, Tahani, was detained at the Nairobi airport for three days. "I've heard, 'It's your people'"—that the US is behind her family's troubles with customs officials—"more times than I can count," she told me. "I go to airports now and there's this constant sense of trepidation. Am I gonna make it? Am I gonna get locked up again?"

"As a family we have always been mobile and traveling our whole lives, and as a result completely took it for granted," she told me. "The removal of the liberty to travel was crippling."

One of Naji's brothers says he is frequently questioned about Naji when he crosses an international border. The other, a Marine veteran based in Virginia, was visited by members of the Navy's criminal investigative service, who grilled him about Naji. The FBI even interviewed Naji's uncle and aging grandmother in Rhode Island in 2009.

"They didn't get to me, so they had to target my family," says Naji.

The story is horrific, but chillingly consistent with similar stories that we've heard about the way the FBI operates. Yes, it's important for the FBI to try to find out information about possible terrorists, but they seem to have no concern at all for wrecking the lives of totally innocent people in their pursuit of anyone. These are the kinds of activities that you hear about from authoritarian police states. It's the kind of thing that we were always taught the US doesn't do. Whether or not it was always a lie, it's clearly not the case today.

from the police-state dept

Over the past few months, we've covered the bizarre trial of Rahinah Ibrahim, who was incorrectly placed on the no fly list, leading to a series of other problems, meaning that the Stanford PhD grad student was unable to fly back into the US for the past ten years. When the unredacted ruling in that case was finally released last week, we discovered that Ibrahim is still in the "terrorist screening database" (TSDB), though not on the no fly list, and barred from getting a visa to travel back to the US, even though the US admits she's no threat, because of a "secret exception" to the "reasonable suspicion" standard. And, given that the exception is secret, we may never know what it is.

However, perhaps it has something to do with "when the FBI wants to intimidate you into becoming an informant," as a new lawsuit suggests. (And because none of the news sources reporting on this seemed willing to put the actual legal filing online, here it is.) The lawsuit was filed on behalf of four different men, who all had similar experiences with the FBI threatening to put them on the no fly list if they didn't become informants, reporting back on what others in their Muslim communities were up to -- and then finding themselves on the list after refusing.

Plaintiff Muhammad Tanvir is a lawful permanent resident of the United States whose
most recent residence in the United States was in Corona, Queens, New York. Mr. Tanvir
is Muslim. Mr. Tanvir was placed on the No Fly List after he declined multiple requests
by FBI agents to serve as an informant in his Muslim community. He declined to do so
because it would have violated his sincerely held religious beliefs. He also felt that he
had no relevant information to share. After he learned that he had been placed on the No
Fly List, he was told to contact the same FBI agents to clear up what he presumed was an
error that led to his placement on the No Fly List. Instead, the FBI agents offered to help
him get off the List—but only in exchange for relaying information about his community.
Mr. Tanvir again refused. Mr. Tanvir does not pose, has never posed, and has never been
accused of posing, a threat to aviation safety.

Plaintiff Jameel Algibhah is a United States citizen who resides in the Bronx, New York.
Mr. Algibhah is a Muslim. Mr. Algibhah was placed on the No Fly List after he declined
a request from FBI agents to attend certain mosques, to act “extremist,” and to participate
in online Islamic forums and report back to the FBI agents. After Mr. Algibhah learned
that he was on the No Fly List, the same FBI agents again visited him, telling him that
only they could remove his name from the No Fly List if he agreed to act as an informant.
Mr. Algibhah again exercised his constitutional right to refuse to become an informant
and he remains on the No Fly List. Because of his placement on the No Fly List, Mr.
Algibhah has been unable to visit his wife and three young daughters in Yemen since
2009. Mr. Algibhah does not pose, has never posed, and has never been accused of
posing, a threat to aviation safety....

Plaintiff Naveed Shinwari is a lawful permanent resident of the United States who resides
in West Haven, Connecticut. Mr. Shinwari is a Muslim. Mr. Shinwari was placed or
maintained on the No Fly List after he refused a request from FBI agents to be an
informant on his Muslim community. Subsequently, he was prevented from boarding a
flight to Orlando, Florida, where he had found work. Following his placement on the No
Fly List, the same FBI agents approached Mr. Shinwari, told him they were aware of his
inability to board his flight, and again asked him to work as an informant. Mr. Shinwari
again refused. Because of his placement on the No Fly List, Mr. Shinwari’s work has
been disrupted and he has been unable to visit his wife and family in Afghanistan since
2012. Mr. Shinwari does not pose, has never posed, and has never been accused of
posing, a threat to aviation safety....

Plaintiff Awais Sajjad is a lawful permanent resident of the United States who resides in
Jersey City, New Jersey. Mr. Sajjad is a Muslim. Mr. Sajjad was prevented from flying
because he was on the No Fly List. After he sought to be removed from the List, he was
approached by FBI agents and subjected to extensive interrogation, including a polygraph
test, after which he was asked to work as an informant for the FBI. Mr. Sajjad had no
relevant information to share, so he refused. Because of his placement on the No Fly
List, Mr. Sajjad has been unable to visit his family in Pakistan, including his ailing 93-
year old grandmother, since February 2012. Mr. Sajjad does not pose, has never posed,
and has never been accused of posing, a threat to aviation safety

Note how these are all US citizens or lawful permanent residents. The filing notes that while the FBI has used a number of other threats to turn Muslims into informants -- including threatening their immigration status or trying to prosecute them for minor crimes -- at least in those cases, the victims know what's happening. Since the no fly list is totally opaque, the FBI can abuse it widely, with almost no recourse.

Withholding immigration benefits or
bringing criminal charges against American Muslims can be challenged and resolved
under known legal standards through procedurally adequate administrative or judicial
proceedings. Unlike those situations, the No Fly List operates under unknown standards
and a vague set of criteria with a process that provides no opportunity to learn of the
purported bases for placement on the List or to respond to such claims. This secretive
process is conducted with no impartial determination on the merits, and without regard to
the possibly retaliatory or unduly coercive motives of the field agents who place people
on the No Fly List.

The full filing goes into a lot more detail on the four cases above, showing just how far the FBI is willing to go to try to intimidate people into becoming informants. They're not just asking them to provide information, but often asking them to travel to foreign countries, infiltrate various groups, and send back information. For a whole variety of reasons, the individuals found this to be completely unacceptable, and were subsequently punished by the FBI. The stories are rather heart-wrenching, as these individuals are bullied (sometimes to the point of breaking down and crying), as the FBI threatens all sorts of punishment if they don't do what the FBI wants, which often involves putting themselves in very dangerous positions.

Of course, this is exactly what happens when you allow for secret "lists" like this to proliferate, and give the FBI nearly unlimited power to spy on Americans. I'm assuming that, as in previous no fly list cases, the US government will freak out and claim all sorts of "national security" reasons why the entire case should be dropped. Hopefully, the courts will not allow such games.

Dubbed "Operation Flex" in deference to its main participant, this 2006 FBI project attempted to uncover a terrorist cell in a group of Orange County Muslims, even if it had to invent that cell itself. The FBI's man on the inside was Craig Montielh, who likely cut an incongruous figure at the mosque at 6'2", 260 lbs... and white. A bodybuilder with a sketchy past, Montielh was instructed to make contact with the supposed jihadists during his frequent visits to an Irvine gym where many of the Muslim men worked out.

To Montielh's credit, he sunk himself into the role. His FBI contacts suspected his new friends might be a terrorist cell because, well, they were four, unmarried Egyptian men living under one roof. But his enthusiasm for the job was constantly thwarted by his "targets," who preferred playing FIFA Soccer on the Xbox to discussing terrorist plots.

At first, they treated Montielh (who was going by the name "Farouk") as one of them, a new acolyte in need of guidance. But as time went on and Montielh became desperate to show results, his desire to turn idle revolutionary chat into action began to worry his companions. Montielh's first move was to amp up his personal relationship with Allah.

Months passed. People noticed that Craig was acting more devout. He began reciting prayers aloud, dressing in traditional robes, and showing up so early for 5:00 AM prayers that he'd get there before the person who unlocked the mosque every morning. They also noticed something else.

Yassir Abdel Rahim - Slowly and surely enough, during some times when we were having coffee, came the question of jihad.

Craig talked to his Arabic teacher, Mohammad Elsisy, about his new obsession too.

Mohammad Elsisy - He invited me once to lunch, yes. And he focused the topic in the lunch about jihad. And I keep turning his attention into the essence of Islam. And he keeps, again, bringing it back to jihad. And he kept asking about jihad over and over and over. And I told him, Farouk, get over it, get over it, get over it.

With Montielh trying and failing repeatedly to get these California Muslims to warm up to his own personal jihad, the FBI decided it was time for phase two. Montielh was told to start talking up an actual terrorist plot to blow up buildings in Southern California. After Montielh aggressively broached the subject to his friends during a car ride, they decided to do what anyone would have done in that situation:

After they parted ways with Craig, Mohammad and Niazi talked about what had just happened. They decided they had to do something, so they did what all Americans are supposed to do in this situation, what law enforcement officials tell us we should do when someone says he has access to weapons and wants to use them. They reported Craig to the FBI as a potential terrorist.

Mohammed and Niazi had Hussam Ayloush, the director of the Council on American Islamic Relations, make the call for them. He spoke to Steve Tidwell, the head of the FBI's California branch. Tidwell didn't even ask for a name or last known address of this white Muslim terrorist and assured Hussam that the FBI would take it from here. And the FBI did, launching what, for all intents and purposes, looked like an actual terrorist investigation.

But instead of wholeheartedly pursuing its own man, the FBI agents were more interested in repeatedly questioning everyone Montielh had talked to. They honed in on Niazi, whose sister was married to Amin al-Haq, designated as a terrorist by the US government. The FBI agents used this as leverage in an attempt to get Niazi to become a paid informant and go to work for them in Afghanistan. When he refused, the FBI had him arrested for "immigration fraud and making false statements."

But what's interesting about Niazi's arrest is what he wasn't charged with. He wasn't charged with associating with terrorists himself. He wasn't charged with plotting an attack. And he wasn't charged for anything he'd ever said to Craig over the course of months of recorded conversations.

At Niazi's trial, Agent Thomas Ropel repeatedly told the prosecutor that Niazi had instigated the conversations related to the so-called "terrorist plot." This isn't the way Montielh (or his tapes) remembers it:

Sam Black - Did Niazi ever instigate this kind of conversation with you?

Craig Montielh - No. No, I did. Every time.

Despite not being charged with anything more serious than immigration fraud and "making false statements," Niazi was placed under house arrest for more than a year. He represents all of the arrests or indictments made as a result of Operation Flex. And even this didn't stick. The US government filed a motion to dismiss all charges against Niazi.

Another home-built terrorist operation and not even a single conviction to show for it. In fact, the FBI is arguably worse off now than if it had never begun the investigation. The Council on American Islamic Relations (CAIR) has brought a lawsuit against FBI over Operation Flex, claiming the investigation violated their First Amendment rights by targeting them for their religious beliefs, as well as subjecting them to searches and monitoring without a warrant. The botched operation has also done damage to the Muslim community in California:

Operation Flex didn't just make people suspicious of law enforcement. It made them suspicious of each other. So many people I talked to say they stay away from new converts now. They have a hard time believing people are who they say they are. Here's Ayman, the Egyptian guy who first befriended Craig.

Ayman - Really, what they did is they made everybody in the mosque not trust everybody. Nobody would talk about it, but nobody-- you would see some weird looks, you know what I mean? People are looking at each other weird. I don't know. Maybe I was sensitive, but I can tell that the way they looked at me was just different.

In addition to making themselves look like a bunch of government agents creating their own busywork to stay employed, the FBI has taken yet another serious hit to its credibility. Early on in the transcript, it's noted that Stephen Tidwell (head of the FBI in Los Angeles) made an earlier approach via a town meeting at the Islamic Center of Irvine. He assured everyone attending that the FBI was not monitoring the mosque and that they would be informed if anyone from the FBI was planning to visit. That was June 5, 2006. Operation Flex began roughly two months later.

Of about 500 terrorism cases since 9/11, about 50 defendants have been involved in cases where the informant came up with the idea and provided all of the means.

Finally, the worst, but least surprising, news of all: in an update to the story, NPR points out that US District Judge Cormac Carney has dismissed the lawsuit brought by CAIR, stating that allowing the the suit to proceed would "significantly compromise national security."

Carney's self-serving statement casts him (and a large part of the government's various secretive services) as an ancient Greek hero:

In struggling with this conflict, the Court is reminded of the classic dilemma of Odysseus, who faced the challenge of navigating his ship through a dangerous passage, flanked by a voracious six-headed monster, on the one side, and a deadly whirlpool, on the other. Odysseus opted to pass by the monster and risk a few of his individual sailors, rather than hazard the loss of his entire ship to the sucking whirlpool. Similarly, the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security.

I know the Greeks laid the foundation for modern democracy, but perhaps we shouldn't base our decisions on their epic tragedies.